Issues with respect to article 4 of Annex II to the Convention
(ten-year time
limit for submissions)

SPLOS/183
- Decision [of the eighteenth Meeting of States Parties] regarding the workload of the Commission on the Limits of
the Continental Shelf and the ability of States, particularly
developing States, to fulfil the requirements of article 4 of Annex
II to the Convention, as well as the decision contained in SPLOS/72,
paragraph (a).

SPLOS/INF/20 - "Issues related to the workload of the Commission
on the Limits of the Continental Shelf — tentative dates of
submissions"
(Please
note a typographical error in the annex for Cape Verde: for "By
April 2008" read "By April 2009".)

SPLOS/INF/20/Add.1 - Addendum - Issues
related to the workload of the Commission on the Limits of the
Continental Shelf — tentative dates of submissions

SPLOS/INF/20/Add.2 - Addendum - Issues
related to the workload of the Commission on the Limits of the
Continental Shelf — tentative dates of submissions

SPLOS/72 - Decision regarding the date of commencement of
the ten-year period for making submissions to the Commission on the
Limits of the Continental Shelf set out in article 4 of Annex II to
the United Nations Convention on the Law of the Sea (29 May 2001)

Background information (as at
2001)

Under
article 4 of annex II to the Convention, a coastal State intending to establish
the outer limits to its continental shelf beyond 200 nautical miles is obligated
to submit particulars of such limits to the Commission on the Limits of the
Continental Shelf along with supporting scientific and technical data as soon as
possible but in any case within 10 years of the entry into force of the
Convention for that State.

At the tenth Meeting of States Parties, concerns had been voiced by
developing States regarding the difficulty of complying with the time limit in
article 4 of annex II to the Convention. The Meeting had expressed general
support for the concerns raised and decided to include in the agenda for the
eleventh Meeting the item “Issues with respect to article 4 of annex II to the
United Nations Convention on the Law of the Sea”. It also requested the
Secretariat to prepare a background paper on the matter.

In addition to the document prepared by the Secretariat (SPLOS/64),
the eleventh Meeting of States Parties also had before it notes verbales from
the Government of Seychelles regarding the extension of the time period for
submissions to the Commission (SPLOS/66) and a position paper (SPLOS/67) on the
time frame for submissions put forward by the following States members of the
Pacific Island Forum: Australia, Fiji, Marshall Islands, Micronesia (Federated
States of), Nauru, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga
and Vanuatu.

The representative of the Federated States of Micronesia, introducing the
position paper, emphasized the complexity of the task of preparing submissions
to the Commission on the Limits of the Continental Shelf, which required
significant resources, capacity and expertise to carry out the necessary
activities such as the collection, collation and analysis of a large amount of
bathymetric, seismic and geophysical data. He pointed out that a crucial theme
of the Convention was that developing States should not, through lack of
resources or capacity, be disadvantaged in respect of access to or use of their
resources. Therefore, it would be inconsistent with the general approach of the
Convention if developing States were unable to define the limits of their
extended continental shelf owing to a lack of resources or capacity. In that
regard, he emphasized that the Convention contained important provisions on
transfer of technology so as to ensure that developing States were able to
exercise their rights and fulfil their obligations under the Convention.

He emphasized that many countries would not be able to make a submission
within the 10-year time frame stipulated in the Convention for reasons of
capacity, financial and technical resources; the lack of settlement of key
jurisdictional boundaries and the complexity of the technical issues involved.
Furthermore, States had had a clear idea of how to prepare their submissions
only after the Commission had adopted its Scientific and Technical Guidelines on
13 May 1999. The representative recalled that the election of the members of the
Commission had not taken place until May 1997, nearly three years after the
entry into force of the Convention. In the light of the foregoing, the Pacific
Island Forum States proposed the following:

(a)That the States Parties agree to extend the 10-year period prescribed in
annex II, such an extension to be agreed through a decision of the Meeting of
States Parties or through an understanding on the interpretation of annex II;

(b)Such an understanding would include an agreement that the 10-year period
would not begin to run for any State Party, regardless of its date of
ratification or accession, until the date of adoption of the Commission’s
Guidelines;

(c)The time for making a submission would be further extended beyond 10
years where a State Party had been unable, for technical reasons, including lack
of technical capacity, to comply in good faith with the time limitation (SPLOS/67,
para. 8).

Many delegations agreed that the development and strengthening of the
capabilities of developing States, including small island developing States, in
order to enable them to benefit fully from the legal regime for the oceans as
established by the Convention, was an issue of crucial importance. They
supported the arguments put forward in the position paper of the Pacific Island
Forum States that the Meeting of States Parties should consider issues with
respect to article 4 of annex II and take such a decision on the starting date
for the calculation of the 10-year time period for making submissions, which
would ameliorate the difficulty in complying with the 10-year deadline envisaged
in the Convention.

The Meeting generally supported a step-by-step approach to the issues
raised with respect to article 4 of annex II to the Convention. The first step
was to address the issue of selecting the date for calculating the 10-year time
limit, which could be done at the present Meeting of States Parties. The second
step was to deal with the issue of a possible extension of the
10-year time limit, which required a sound legal solution on the substance of
the matter and on the procedures to be followed.

Many delegations agreed that the starting date should be 13 May 1999, the
date of adoption of the Scientific and Technical Guidelines, which also marked
the completion of the three basic documents of the Commission; the other two
being its Rules of Procedure and its modus operandi. They pointed out that the
Guidelines gave clear and detailed guidance to States as to the procedures to be
followed in the preparation of submissions to the Commission and to the
particulars that would be expected to be included in such submissions. One
delegation emphasized that the adoption of the Guidelines was not a prerequisite
or a condition for making submissions by States, and that States should avoid
taking on any additional obligations not included in the Convention.

Some delegations pointed out that there was no legal consequence
stipulated by the Convention if a State did not make a submission to the
Commission. Several delegations underscored the principle that the rights of the
coastal State over its continental shelf were inherent, and that non-compliance
with the 10-year time period specified in article 4 of annex II would not
adversely affect those rights, which did not depend on occupation, effective or
notional, or any express proclamation, as stated in article 77, paragraph 3, of
the Convention.

On the issue of a possible further extension beyond 10 years of the time
period for making submissions to the Commission, as proposed by the Pacific
Island Forum States (SPLOS/67, para. 8 (c)), several delegations recognized that
such an extension would accommodate the needs of developing countries, which
lacked the requisite expertise and resources to fulfil the requirements of
article 4 of annex II within the prescribed period. A number of other
delegations were of the view that at the current stage the adoption of the
decision that the 10-year period would not begin to run for any State Party,
regardless of its date of ratification or accession, until the date of adoption
of the Commission’s Guidelines, would have already ameliorated substantially
the situation for the first group of States by extending their deadline, in
fact, for an additional five years. The delegations agreed that meanwhile
further discussions were needed on the issue of the ability of States,
particularly developing States, to fulfil the requirements of article 4 of annex
II to the Convention.

Some delegations were of the view that a coastal State which for
economic, financial or technical reasons was able to make only a partial
submission within the 10-year time period should be viewed as having complied
with the requirements of article 4 of annex II to the Convention.

The procedural issue of how to give effect to any decision extending the
10-year time period was also discussed. Four possible procedures were put
forward. They were similar to what was outlined in the background paper by the
Secretariat (SPLOS/64, paras. 71-75):

(a)An amendment in accordance with article 312 of the Convention;

(b)An amendment by means of the simplified procedure provided for in article
313;

(c)An agreement relating to the implementation of article 4 of annex II to
the Convention;

(d)A decision by the Meeting of States Parties along the lines of the
procedure used by the Meeting regarding the postponement of the election of the
members of the Tribunal and of the members of the Commission on the Limits of
the Continental Shelf.

Many delegations were of the view that it fell within the competence of
the Meeting of States Parties to adopt by consensus a decision expressing
general agreement on the starting date for calculating the 10-year time period.
Such a decision, they stated, would be of a procedural nature similar to the
ones the Meeting had taken with respect to the postponement of the election of
members of the International Tribunal for the Law of the Sea and that of the
members of the Commission. However, one delegation was of the view that the
issue of the starting date was of direct relevance to the rights and obligations
of States Parties to the Convention and therefore could not be considered as
simply procedural.

With respect to a possible decision, the Chairman of the Commission on
the Limits of the Continental Shelf stated that the 10-year deadline was a
matter that fell within the competence of States; the Commission would be guided
by whatever deadline was decided upon by the States Parties on the condition
that the decision was legally correct. In response, some delegations, while
acknowledging the independent nature of the Commission, pointed out that the
Commission had been established by the Convention, of which the States Parties
were the custodians. In that regard, they underscored the importance of any
decision taken by the Meeting of States Parties on the matter.

In the light of the discussions and of a proposal put forward by Papua
New Guinea, an open-ended Working Group was convened by the President. A draft
decision was prepared by the Group (SPLOS/L.22), which was subsequently adopted
by the Meeting of States Parties (SPLOS/72).
The decision provides that, for a State for which the Convention entered into
force before 13 May 1999, the date of commencement of the 10-year time period
for making submissions to the Commission is 13 May 1999.

There was general agreement that States that were in a position to do so
should make every effort to make submissions within the time period established
by the Convention. In that regard, it was pointed out that the deferral of the
deadline should not place an undue burden on those States that were ready to
make their submissions by requiring them to present new data at that time.

Many delegations pointed out that the issue of training and transfer of
technology was closely linked to the discussions on the time period for making
submissions to the Commission. Some stated that capacity-building was of vital
importance irrespective of the decision on the starting date for the 10-year
period and a possible decision on the extension of that period.

Many delegations noted with satisfaction the establishment of a trust
fund and the contribution that had been made to it so far. They expressed the
hope that further contributions would be made to the fund. Referring to the
statement by the Chairman of the Commission on the lack of a mandate on the part
of the Commission to conduct training, some delegations emphasized the need for
the relevant institutions to actively support training activities. It was
suggested that cooperation between the Commission, regional centres of
excellence and the United Nations University should be pursued.

Prepared by the Division for Ocean Affairs and the
Law of the Sea, Office of Legal Affairs, United
Nations.